Citation Nr: 22016454 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 18-47 392 DATE: March 22, 2022 ORDER Reopening of the claim of entitlement to service connection for sleep apnea is granted. Reopening of the claim of entitlement to service connection for hearing loss is granted. Service connection for sleep apnea is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a disability rating higher than 10 percent for a neck numbness (neuritis), status post-gland removal, is remanded. FINDINGS OF FACT 1. A February 2015 rating decision denied the Veteran's claim of entitlement to service connection for sleep apnea; the Veteran did not appeal the decision or submit any new and material evidence within the appeal period; evidence received subsequent to the February 2015 decision includes evidence that is not cumulative or redundant of the evidence previously of record and that relates to unestablished facts necessary to substantiate the claim. 2. A February 2015 rating decision denied the Veteran's claim of entitlement to service connection for bilateral hearing loss; the Veteran did not appeal the decision or submit any new and material evidence within the appeal period; evidence received subsequent to the February 2015 decision includes evidence that is not cumulative or redundant of the evidence previously of record and that relates to unestablished facts necessary to substantiate the claim. 3. The evidence is in at least approximate balance as to whether the Veteran's sleep apnea originated during service. CONCLUSIONS OF LAW 1. New and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for sleep apnea. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Introduction The Veteran served on active duty in the United States Army from April 1976 to June 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the U.S. Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the electronic claims file. The Board acknowledges that the Veteran's VA Form 9, substantive appeal, was submitted within 60 days of the issuance of Statements of the Case (SOCs) issued by the RO on August 22, 2018, and August 30, 2018. The August 22, 2018 SOC addressed the Veteran's evaluation for service-connected posttraumatic stress disorder (PTSD). The August 30, 2018 SOC addressed service connection for sleep apnea, service connection for bilateral hearing loss, and the evaluation for the Veteran's service-connected neck numbness, as well as the evaluation for the Veteran's service-connected tinnitus. Although the Veteran's VA Form 9 listed the issues of hearing loss, numbness in the right side of neck (neuritis) and sleep apnea. Furthermore, during a pre-hearing conference prior to the Veteran's Board hearing, the Veteran's representative confirmed the only issues being appealed were service connection for sleep apnea, service connection for bilateral hearing loss, and an increased rating for neck numbness. See August 2021 Hearing Transcript. Under these circumstances, the Board finds that the issues of entitlement to increased ratings for PTSD and tinnitus are not before the Board. The Board also observes that in the October 2015 rating decision, the RO decreased the Veteran's previously assigned evaluation for her service-connected asthma from 30 percent to 10 percent. In October 2016, the Veteran filed a Notice of Disagreement (NOD), specifically requesting that the 30 percent rating be restored. In an August 2018 rating decision, the RO restored the 30 percent rating throughout the period of the claim. Under these circumstances, the Board finds that the benefit sought on appeal has been granted in full. Thus, the issue of entitlement to a higher rating for asthma is not before the Board. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). "[I]f the positive and negative evidence is in approximate balance ... the claimant receives the benefit of the doubt." Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Background and Analysis Reopening of claims The Veteran's claims for service connection for sleep apnea and bilateral hearing loss were denied in a February 2015 rating decision. The decision stated that there was no probative evidence linking the Veteran's sleep apnea to service, and that the Veteran's hearing loss was not severe enough to constitute hearing loss for VA purposes. The February 2015 decision became final because the Veteran did not submit a Notice of Disagreement (NOD) or new and material evidence in connection with the claims within the appeal period. See 38 C.F.R. § 3.156(b). The Board has a jurisdictional responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board is neither required nor permitted to analyze the merits of a previously denied claim if new and material evidence has not been submitted. Butler v. Brown, 9 Vet. App. 167, 171 (1996). A claimant may reopen a finally-adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim, triggering an alternative theory of entitlement, or triggering the Secretary's duty to assist by providing a medical opinion. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In connection with the Veteran's claim to reopen, she submitted a June 2021 report from a private nurse stating that her sleep apnea likely first manifested during service. In addition, at her August 2021 hearing, the Veteran testified that her hearing loss had become worse since her last VA examination. Under these circumstances, the Board finds that new and material evidence has been received sufficient to reopen the Veteran's previously denied claims. See 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for sleep apnea The record shows the Veteran was diagnosed with sleep apnea in 2004, approximately 8 years after her discharge from active service. The Veteran, however, has contended that her sleep apnea began manifesting during service, with loud snoring and daytime tiredness. In support of her claim, the Veteran's husband submitted a statement in May 2005. He stated that he had been married to the Veteran since 1978, and noticed that she began snoring during her sleep, nightly, in 1988. He asserted that she would snore loudly all through the night, have difficulty breathing, and wake up from any sound. In November 2009, the Veteran's friend, A.S., provided a statement. A.S. asserted that she had known the Veteran for a long time, and had lived with her on several occasions, including between 1982 and 1984, between 1984 and 1986, and between 1989 and 1990. A.S. recalled that the Veteran had had a bad snoring condition for a long time, and that sometimes while sleeping she would stop breathing and awaken gasping for air. In June 2021, a report was provided by A.C., a private registered nurse. A.C. noted she had reviewed the Veteran's claims file. She then provided a general discussion of sleep apnea symptoms and noted that the condition may be evaluated by subjective methods, such as family observation of symptoms. A.C. then summarized the statements by the Veteran's husband and A.S., referenced above. A.C. then noted that while snoring may be present without sleep apnea, snoring is a common feature of the condition, and in the presence of additional sleep-related symptoms, is a strong indicator. A.C. then noted that sleep apnea is frequently undiagnosed at the time of the onset of symptoms. Ultimately, A.C. stated it was impossible to determine exactly when the Veteran's sleep apnea first manifested. She stated, however, that based upon the evidence of record, it was her professional opinion that the Veteran's sleep apnea at least as likely as not had first manifested during her military service. Upon a review of the foregoing, the Board finds the Veteran, her husband, and A.S. are competent to attest to recurrent and persistent sleep apnea symptoms, both during and after service, which are capable of lay observation. Moreover, their statements are internally consistent, uncontroverted by other evidence of record, and therefore, in the Board's opinion, credible. In addition, the June 2021 opinion by A.C. was based on a thorough discussion of the relevant evidence in the Veteran's claims file, and is supported by a medical rationale. The Board observes that there is no probative medical of record to contradict the June 2021 report. After careful consideration, and having resolved reasonable doubt in favor of the Veteran, the Board has concluded that the evidence of record persuasively favors a finding that the Veteran's sleep apnea originated during service. Consequently, granting of service connection for sleep apnea is warranted. The Board acknowledges that the Veteran has contended that her sleep apnea is secondary to her service-connected asthma. Because the Board has determined service connection is warranted on the basis that sleep apnea originated during service, however, the Board need not address this issue, and makes no finding as to the merits. REASONS FOR REMAND Service connection for bilateral hearing loss The rating decision on appeal shows that the RO has denied entitlement to service connection for hearing loss on the basis that the Veteran's hearing loss does not meet the definition of hearing loss for VA purposes. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran was afforded a VA audiology examination in February 2015. Puretone thresholds were as follows: HERTZ 1000 2000 3000 4000 average RIGHT EAR 15 10 15 15 13.75 LEFT EAR 15 10 15 20 15 Speech discrimination was 100 percent in the right ear, and 100 percent in the left ear. At her August 2021 hearing, the Veteran testified that her hearing loss had significantly worsened since the February 2015 examination. Under these circumstances, the Board finds a remand is warranted for a contemporaneous examination, to determine whether the Veteran has hearing loss for VA purposes. See 38 C.F.R. § 3.159(c)(4) (where the evidence indicates that a disability has worsened and the last VA examination is too remote to constitute a contemporaneous examination, a new examination is required). Increased rating for neck numbness The Veteran is service connected for "numbness, right side of neck (neuritis)" that is a residual of a remote gland removal surgery. She is in receipt of a 10 percent disability rating for the condition throughout the period of the claim pursuant to § 4.124a, Diagnostic Code (DC) 8305, which provides a 10 percent rating for moderate incomplete paralysis of the fifth (trigeminal) cranial nerve. At this juncture, the Board observes that the record presents significant confusion as to the symptomatology attributable to the Veteran's neck neuritis. While the Veteran's 10 percent rating under DC 8305 appears to have been based on a February 2010 VA examination finding that the condition was a manifestation of cranial nerve involvement, a February 2015 VA examiner indicated there were no cranial nerve conditions. In addition, a July 2013 VA examination report indicated the Veteran had severe right upper extremity numbness, but did not specify whether this was due to the Veteran's service-connected neck condition. Furthermore, the Veteran has contended throughout the period of the claim that her neck neuritis causes difficulty swallowing. She has stated that her difficulty swallowing had its onset following her gland removal surgery. In fact, at her August 2021 hearing, the Veteran's representative argued that the Veteran's condition should be evaluated under 38 C.F.R. § 4.114, DC 7203, which provides a minimum 30 percent rating for stricture of the esophagus. In this regard, the Board notes that in a November 2019 letter, the Veteran's private physician, Dr. Y.L., stated that the Veteran's dysphagia was "most likely" caused by scar tissue from her remote neck gland removal surgery. On the other hand, however, May 2018 and March 2021 opinions provided by VA examiners reviewed the Veteran's private treatment records, including a laryngoscopy performed in 2017, and stated there was no pathology to associate the Veteran's dysphagia with her neck issues. In addition, upon evaluation of the Veteran's esophageal conditions, the March 2021 examiner did not diagnose stricture of the esophagus. The Board has determined that in light of the significant inconsistencies among the VA examination reports and other evidence referenced above, a remand is warranted for an additional examination to determine the current severity and symptomatology of the Veteran's condition. The matters are REMANDED for the following action: 1. Afford the Veteran a VA examination to determine the nature and etiology of her bilateral hearing loss. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination, including audiogram and Maryland CNC speech recognition, and a review of the relevant records and lay statements, the examiner should provide an opinion as to the following: Whether the evidence is at least in approximate balance as to whether the Veteran's bilateral hearing loss originated during or is otherwise etiologically related to her active service. In providing his or her opinion, the examiner should address the following: a) The service medical records showing that no hearing loss was noted upon entry into service, but bilateral hearing loss was diagnosed during service with a threshold shift in both ears at 6000 Hertz; and b) The February 2015 VA examiner's opinion to the effect that the Veteran has bilateral hearing loss as a result of in-service acoustic trauma caused by firearms. The examiner must provide a complete medical rationale for any proffered opinion. The Board's reference to evidence in this context should not be construed as a determination of its credibility. See Smith v. Wilkie, 32 Vet. App. 332 (2020). 2. Afford the Veteran an examination to determine the current severity of her neck numbness (neuritis), status post-gland removal. All indicated tests and studies should be performed. The examiner should complete VA Disability Benefits Questionnaires applicable to musculoskeletal cervical spine disabilities, esophageal conditions, peripheral nerve conditions, and muscle injuries. Following the examination and a review of the relevant records and lay statements, the examiner should identify all musculoskeletal, muscle, peripheral nerve, and esophageal conditions that are attributable to the Veteran's service-connected neck numbness (neuritis), status post-gland removal. The examiner must provide opinions as to the following: a) Is the evidence in at least approximate balance as to whether the Veteran has dysphagia attributable to her service-connected neck numbness (neuritis), status post-gland removal? b) Is the evidence in at least approximate balance as to whether the Veteran has stricture of the esophagus attributable to her service-connected neck numbness (neuritis), status post-gland removal? c) Is the evidence in at least approximate balance as to whether the Veteran has any right and/or left upper extremity neurological disability or symptomatology attributable to her service-connected neck numbness (neuritis), status post-gland removal? In providing his or her opinions, the examiner should address the following: a) The Veteran's contention that her dysphagia had its onset following her remote neck gland removal surgery; and b) The November 2019 letter by Dr. Y.L. stating the Veteran's dysphagia is most likely due to scar tissue from her neck gland removal surgery. The examiner should explain each opinion proffered with a complete medical rationale. The Board's reference to evidence in this context should not be construed as a determination of its credibility. See Smith v. Wilkie, 32 Vet. App. 332 (2020). H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hampton, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.